Sixth Circuit Takes Up Ohio Ban on Down Syndrome Abortion

CINCINNATI (CN) – Fighting a preliminary injunction before the Sixth Circuit, Ohio argued Wednesday that a state law outlawing abortions if a woman’s decision is based on indications that a fetus has Down syndrome is constitutional.

Abortion providers Preterm-Cleveland and Planned Parenthood challenged the state’s passage of House Bill 214 with a federal lawsuit in February 2018, just months after the bill was signed into law by former Governor John Kasich.

HB 214 “criminalizes performing an abortion if the person performing the abortion knows that one reason, in whole or in part, for the woman’s decision to terminate her pregnancy is a fetal indication of Down syndrome.”

U.S. District Court Judge Timothy Black granted the abortion providers’ motion for a preliminary injunction on March 14, 2018, just eight days before the law was set to take effect.

Judge Black ruled the proposed law is facially unconstitutional, and cited the 2017 decision in Planned Parenthood of Indiana and Kentucky v.  Indiana State Department of Health in his opinion.

In that case, an Indiana law similar to HB 214 was struck down by U.S. District Court Judge Tanya Walton Pratt.

“It is a woman’s right,” Pratt wrote, “to choose an abortion that is protected, which, of course, leaves no room for the State to examine, let alone prohibit, the basis or bases upon which a woman makes her choice.” (Emphasis in original.)

Judge Black similarly held that HB 214 would “violate a woman’s right to choose, in clear derogation of federal law.”

Ohio had argued that federal law grants women “the right to choose whether to have a child, not the right to decide whether to have a particular child.”

Judge Black disagreed, saying the proposed law is not supported by any other court’s decision.

“The state’s argument that a woman must make this choice from behind a veil of ignorance, oblivious to the circumstances of the child she is carrying, finds no support in the law,” he wrote.

The ruling continued, “The Supreme Court’s decisions in Roe and Casey contemplate that a woman will exercise her right to choose while being well-informed and considering not only the implications of pregnancy but also the circumstances of motherhood.”

Attorney Ben Flowers argued on behalf of Ohio in the Sixth Circuit on Wednesday morning, and opened his remarks by reminding the panel that even under Roe and Casey, there “is no absolute right to a pre-viability abortion.”

Flowers said the district court erred when it refused to “consider [both the] benefits and burdens of the law,” and that the state has a legitimate and compelling interest to prevent the termination of pregnancies involving unborn children with Down syndrome.

U.S. Circuit Judge Bernice Donald asked for the specific interest, and the attorney responded that the law furthers the state’s anti-discrimination efforts.

Flowers said the message such abortions send “is that if you have Down syndrome, your life isn’t worth as much.”

Chief U.S. Circuit Judge R. Guy Cole Jr. asked about the Seventh Circuit’s decision in Planned Parenthood of Indiana, which struck down a state law banning abortions motivated by a fetus’ gender, race or disability.

“Sometimes one circuit gets it wrong,” Flowers replied.

“This is a conflict we should create?” Judge Cole asked.

“Yes,” the attorney said.

Attorney Jessie Hill argued on behalf of Preterm-Cleveland, and told the panel that “the ultimate decision to terminate a pregnancy lies with the woman alone.”

Judge Donald asked about the bill’s lack of an inquiry requirement, insofar as a doctor could perform an abortion without ever asking the patient whether a Down syndrome diagnosis factored into her decision.

“It doesn’t change the fact that HB 214 is a pre-viability abortion ban,” Hill answered.

The attorney went on to say that “the state must consider less restrictive alternatives” because “forced childbearing is not a way” to carry out its non-discrimination interests.

She lamented the bill as an “absolute obstacle” to a woman’s right to choose, and said it “forces doctors to deny women their autonomy.”

In his rebuttal, Flowers asked the panel to remand the case and allow Ohio to develop the record and “have [its] day in court.”

U.S. Circuit Judge Alice Batchelder also sat on the panel. No timetable has been set for the court’s decision.

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